HERMINA v. 2050 VALENTINE AVENUE LLC (2026)

Order, Supreme Court, Bronx County (Raymond P. Fernandez, J.), entered on or about February 25, 2025, which granted defendants’ motion to dismiss the complaint, unanimously reversed, on the law, without costs, the motion denied, and the complaint reinstated.

Supreme Court should not have granted defendants’ motion to dismiss the complaint.  As defendants concede, CPLR 205(a) does not apply because “[w]here, as here, the statutory time limit has not expired ․ [CPLR 205(a)] cannot be applied in such a way as to shorten the period otherwise available to the plaintiff” (Schindler v. Issler & Schrage, 262 A.D.2d 226, 227, 692 N.Y.S.2d 361 [1st Dept. 1999], quoting United States Fid. & Guar. Co. v. Smith Co., 46 N.Y.2d 498, 505, 414 N.Y.S.2d 672, 387 N.E.2d 604 [1979]).  The alleged slip and fall took place on August 24, 2021, and plaintiff filed the prior action on April 5, 2022, which was then dismissed by order entered on or about December 7, 2023.  Plaintiff then refiled the instant complaint on August 21, 2024, within the three-year statute of limitations for his personal injury claim.

Nor is the refiled complaint barred by the doctrine of res judicata because the order dismissing plaintiff's prior action was not on the merits (see Sumar v. Fox, 90 A.D.3d 577, 577, 934 N.Y.S.2d 805 [1st Dept. 2011]).  Defendants moved to dismiss the prior action for failure to respond to discovery demands.  Plaintiff did not oppose the motion, which was granted “without opposition,” and with no indication that the dismissal was on the merits or with prejudice.  Supreme Court was without authority to revise the prior order by adding the words “with prejudice” because that revision substantively changes the prior order (see B & H Fla. Notes LLC v. Ashkenazi, 182 A.D.3d 525, 526, 120 N.Y.S.3d 778 [1st Dept. 2020], lv denied 36 N.Y.3d 906, 2021 WL 627821 [2021];  Johnson v. Societe Generale S.A., 94 A.D.3d 663, 664–665, 943 N.Y.S.2d 74 [1st Dept. 2012]).  Moreover, plaintiff was not required to contest the dismissal of the prior action before commencing this action (see Sumar, 90 A.D.3d at 577, 934 N.Y.S.2d 805).